BRAZIL Trends and Developments Contributed by: Lucas Akel Filgueiras, Giovana Bosso and Caroline Cidri, Akel Advogados
anticipate the evidence” have been demonstrat- ed, as well as a specific mention of the “facts to which the evidence is directed”, therefore mak- ing the legal interest evident, as well as the limits of the claim, the party’s right to the production of the evidence has been recognised. This action, therefore can be thought of as “non- contentious jurisdiction” and involves the parties acting in a collaborative and non-litigious man- ner. It has become an extremely relevant tool in high-profile disputes, which are often highly contentious. In this scenario, the courts were forced to respond to the challenges that arose by adapt- ing their original position, recognising the need to interpret the rules established by the 2015 Code of Civil Procedure in a way that better reflected the actual legal practice, adapting it to the constitutional regime and preserving the rights of the parties involved and the applicable procedural guarantees. The first important reflection was on the right of defence and the right of appeal. Despite the legal provision prohibiting them, in the face of the use of this action in highly contentious dis- putes, especially in business matters, decisions have emerged which, in line with the constitu- tional principles of the right of defence, right of appeal and right to adversarial proceedings (pro- vided for in Article 5(LV) of the Federal Constitu- tion which states “parties in litigation, whether in judicial or administrative proceedings, and the accused in general, are granted the right to a fair hearing and a full defence, with all the means and resources inherent to it”) came to demon- strate that the prohibition would only apply to the merits, and not to preliminary or procedural issues that would lead to the absence of a right to evidence.
In this scenario, both the presentation of a prior defence on the right to evidence itself (and not on the merits of the dispute) and appeals that also dealt with preliminary matters or matters of public policy were frequently admitted. The presence of high levels of litigation, contrary to the legislator’s expectations, has also gradu- ally led to a review of the lack of an order to reim- burse costs incurred by the opposing party and the payment of attorney’s fees to their lawyers, in the light of the “principle of causality”, accord- ing to which the party who has unnecessarily resorted to litigation, by formulating an illegiti- mate claim or illegitimately refusing to adopt a certain course of action, must bear the proce- dural costs incurred by the prevailing party, as well as paying their attorney’s fees. The increasingly clear realisation of the exist- ence of the so-called “disputed claim”, when the defendant refuses to spontaneously produce the evidence sought by the plaintiff (usually the exhibition of a certain document, the provision of certain information or the deposition of cer- tain witnesses), has led the courts to understand that, when it comes to deciding whether or not there is a right to the production of evidence, there would be no escaping the application of the “principle of causality”. The action for pre-suit discovery production was therefore made compatible with the pos- sibility of ordering parties to reimburse the costs incurred by the opposing party, as well as the payment of attorney’s fees, depending on the judgment made by the judiciary as to whether or not the production of the requested evidence was appropriate. Finally, one of the biggest challenges faced by the courts in view of this use of the action for
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